Supreme Court Strikes Down NJAC

This special edition is coming to you from the Capital city as we mark a landmark day in which the Supreme Court struck down the National Judicial Appointments Commission (NJAC) as unconstitutional. The court said that the selection of judges to the senior or higher judiciary will continue to be done via the collegium system. Now, the collegium is a five member body – the Chief Justice of India and four senior most judges of the Supreme Court. It was set up by the Supreme Court itself in the 90’s in response to what went on in the judiciary in the emergency years. Last year though, the government amended the constitution to change the process of selection of judges and move it to the NJAC which is a six member body. Only three positions go to the judiciary, that is the Supreme Court Chief Justice of India and two senior most judges of the court. The fourth position goes to the Law Minister and the fifth and sixth position to eminent citizens selected by another panel.

While the collegiums has attracted quite a bit of criticism over the last few years for being opaque, arbitrary, lacking objective selection criteria, the NJAC, many said was not the answer. And hence, it was challenged in the Supreme Court today. Well, the NJAC lost and the collegiums won. However, the government seems to suggest that the Supreme Court, in doing so, has ignored the will of the people. Here is Attorney General, Mukul Rohatgi.

Mukul Rohatgi, Attorney General

“The collegium system has now directed to be revived by the court. The collegium system is not a system which is found in the constitution. According to me the system is not appropriate and again at least in the future now also appointments will continue to be made in an opaque system where all the stakeholders will not have their voice.”

Menaka Doshi, CNBC-TV18

The government may not be very happy with what went on in the Supreme Court today,but my next guest, Arvind Datar definitely is. Mr Datar was amongst those eminent jurists who argued against the NJAC and in favour of the collegium. I asked him if this victory was sweeter than any other victory he has ever had.

Doshi: It is an important victory, more important than most other victories that you have had in your career today?

Arvind Datar. Senior Advocate, SC

Datar: Oh yes. I mean, if the case had gone the other way, it would have had a long-term effect on the appointment process and perhaps on the entire independence of the judiciary. This is perhaps the most important case of the 21st century.

Doshi: What is you reading of how the Supreme Court bench of five judges arrived at this decision. It was a split decision; four of them voted against the NJAC, Justice Chelameshwar dissented. How do you read the grounds on which they found the NJAC to be unconstitutional?

Datar: The three main grounds which they spelt out in open court were that there is no need to consider the second and third judges’ case. Now, these two cases laid down the collegium system and the union of India had made a very strong demand that was argued for at least a week, that those two judgements had to be reconsidered and they wanted to refer it to a 11-judge bench to reconsider whether the role of judges in the appointment process is part of a basic structure or not. That has been turned down. So, now the second and third judges case are become final, they cannot be questioned anymore.

Then they came to the constitutional amendment and four out of five have said in no uncertain terms that the constitutional amendment act is unconstitutional and violative of basic structure. They made that very clear. The next process is the Judicial Appointments Commission Act, the parliamentary law. That also is held to be unconstitutional by four out of the five judges. On the last act portion, Justice Chelameshwar who took a different view on the constitutional amendment. He said that since everybody has decided to strike down the act, I need not spend time on that, so that is how the judgement went.

Doshi: What is it that they found unconstitutional about the NJAC? Was it the fact that the Supreme Court or the judiciary no longer had the primacy in appointing judges to the higher judiciary? Was it that some aspects of the selection process were left to a law which can be easily be amended by the parliament or to regulations even and not spelt out very clearly in the constitutional amendment act?

Datar: Right from the beginning it was clear that the constitutional amendment was very badly drafted and so was the act. It is seriously flawed and the ground on which they struck down the constitutional amendment was primarily this concept of eminent persons which had not been defined and also one of the judges said that the participation of the Law Minister would influence the appointment process in an impermissible way.

Then they also went into the individual articles and pointed out that certain provisions are totally unconstitutional because they undermine the judiciary. In simple terms, what they said was as long as you give primacy to the judges in the appointment process, right from the initiation of the selection up till the appointment process, it is valid. But, this amendment gives executive a much larger role and therefore it is impermissible. They also dispel the doubt. They said the public are under common misconception that under the collegium system, the judges are what Dr Ambedkar called imperium in imperio, that is they are all Supremes and that is not the case.

Even in the collegium system, the matters are referred to the government. The government’s opinions is taken into account and it is a fact. It is not that they just go off on their own. So, they said that it is a considerate participative process and they said that the collegium system has given a structure. It is not that it is Chief Justice alone who decides or the minister alone who decides. There are three or five judges, they call for the objections and the whole thing is a participative process and that is valid.

To the extent that the constitutional amendment does not make it very clear, because they said, you want a veto power. Then you not only undermine the Chief Justice’s role, you undermine the judges’ role and Justice Lokur pointed out that you also undermine the president’s role because even after the president is interested, you can simply veto it. And there were no reasons on which you can veto. These two eminent persons can be just say that we do not like so and so and veto it. And we also argued that this could lead to structured bargaining, you see. And it could seriously vitiate the appointment process.

As far as the act is concerned, they went into individual sections, like there was a very strange provision which said that the entire appointment process of the NJAC had to be tabled before parliament and parliament could modify it. So, this was obviously, absurd because if NJAC is an autonomous body, where is the question of parliament then sitting in judgement over it, so that was bad. Having said that, one other thing which I thought that the judgement does not seem to – the judgement is a 1,030 pages. So, unless we read the fine print and find out what are the common threads among the four judges and five judges.

Doshi: Which is going to take a few days at least in terms of determination.

Datar: Yes, I think we will have to make complete chart and see who says what. The main thing which we had also argued is that we said that to make it constitutional, please put the entire appointment process in the constitution itself. Do not put it in a parliamentary act. That, they recorded the submission, but I did not see that as being dealt with in a very elaborate manner.

Doshi: But, could that be that having struck down the NJAC as violative of the constitution, they did not need to get into the process then, of how the NJAC functions at this point, because that really is what comes next after having decided on a body that works?

Datar: Yes, I think you are right, because I got the impression that having struck down the basic that you are giving primacy, you are destroying the primacy of the judiciary, they perhaps thought it was not necessary to into the other questions.

Doshi: One of the other things you brought up when we were talking before the interview was when it comes to the constitution of the NJAC, which is three judges of the Supreme Court, the Chief Justice plus the next two senior most judges, the Law Minister and two eminent persons – eminent persons, you have already spoken of – but you said one of the judges also brought up an objection against the presence of the Law Minister on a panel of this nature.

Datar: Yes. Actually, Mr Jethmalani who was also one of the counsel, he seriously objected to the Law Minister’s presence, he said he was himself a Law Minister and he said that he knows or he knew what an important role a Law Minister can play and how his presence could vitiate the appointment process. That seems to have been accepted by one of the judges, Justice Lokur, who has said that the presence of the Law Minister, could influence the appointment process keeping in mind his presence in the Cabinet and the role he plays in the entire process.

Doshi: Mr. Jethmalani today on Twitter has said all the government should resign given that they have lost the case, I am just saying that tongue in cheek. So it is fair for us to then surmise that almost every aspect of the NJAC has found to be violative of the constitution, by four judges of the five judge bench and unless this is rewritten by the parliament in a substantive fashion, it is not going to find muster with the Supreme Court.

Datar: Yes, I think if parliament wants to redraft a new constitutional amendment to introduce the NJAC, in the presence of the collegium, then they will have to make sure that in the selection committee or the selection process, judges have primacy. That is the majority cannot be otherwise than with the judges you can have participation by an eminent person or by a representative of the government or a speaker or some two members, whatever they may be, but the majority must be with the judges. In fact we made a comparison of 192 constitutions before the Supreme Court and we said that even where there is judicial appointments commission where there are lay people also, the common people also, in many cases, the last word is left with the judges.

Doshi: But there are many countries though where the judicial appointments are political, whether it is the USA and the appointments to the Supreme Court are done by the president and then ratified by the Senate. Or several other countries also the political class is keenly involved in the appointment of judges. And that brings me to my next question. How do you see this progressing from here on? Is this the final round in the battle between the Judiciary and the parliament or the political class? Do you expect that the government may attempt to move forward on this, either by asking a review or by rewriting the act and still seeking to replace the collegium? Is this battle going to continue?

Datar: Well first answering your question, if you compare the 192 constitutions; we too 192 because there are 192 members of the United Nations so we took their constitutions; the pattern followed by India where the judges have primacy are there only in four or five countries in the world, where there is no judicial appointments commission. There are about 50 odd countries with the judicial appointments commission; there are countries where the kings or the presidents straight away appoint. So there is a complete mix. There are many countries where there is appointment by commission but it has to be ratified by parliament, so there are multiple processes. We need not worry about that we have our own process.

Now what is the way forward? Two options are there as far as I see. One is that the Supreme Court has now posted the case on the 3rd of November and asked all the parties concerned to give concrete suggestions to improve the collegium process, so they can issue directions, maybe they want to have an operating procedure where from the selection process, from the finding out who are the potential candidates to their appointments, there is kind of a set procedure which is transparent and fair. That could be the intention. Well the government can either participate in that and do it or as far as the judgment is concerned, nothing prevents the government to have a fresh amendment, bring in the new NJAC law, which gives the judges the primacy or the supremacy.

Doshi: But given how quickly the NJAC, the constitutional amendment and the act were passed, given that it found support across political class, given that the act or the bills were born under the United Progressive Alliance (UPA) and passed under the National Democratic Alliance (NDA), and there seems to be one rare moment of unanimity within our politicians when it comes to this. Do you think the government is going to give up without a fight?

Datar: It is really a rare unanimity. I mean they have been unanimous only twice, one is when they increase their own salaries and the second is when judicial appointment came and I was quite surprised because such an important bill, such a badly drafted bill, despite the fact that many members of parliament are lawyers, nobody even saw how potentially fatal this amendment could be it was just owed in a day. In fact I am told that except Mr. Jethmalani nobody has opposed either in the Lok Sabha or the Rajya Sabha, all members unanimously, without bothering about the consequences. And we also told the Supreme Court that when such an important change comes, where you are going to alter the entire appointment procedure and it is going to be for the next 25-30 years, they could have at least referred it to the select committee, referred it to the bar associations, called for the comments. Nothing was done. Very strange and very sad. In fact this is an embarrassment that the government has brought up on itself. It could have at least be more circumspect and there are important recommendations of the Venkatachaliah Committee which gives primacy to the judiciary, they could have followed that.

Doshi: And it is curious right, because if you look at the Companies Act, that has been through two sets of scrutiny by the parliamentary standing committee. Half notified as of now and the government sent it back to another panel to relook at the other provisions to see if they suit business or not. So if that law, an important commercial law, if that law can get so much scrutiny, why would not a law of such national importance?

Datar: I suppose if they had wanted a new legislation at least I hope whatever the newly drafted bill is, it is considered through select committees, through bar associations, through lawyers, through stakeholders and then enacted. If at all they do that.

Doshi: The critics of the collegium system, and there are many, and in fact I think you yourself have in previous interviews pointed out that there are many flaws existing in the collegium system, are very disappointed today. So if you look at social media, if you look at some of the commentary on media some people have termed it as a loss for transparency and a victory for opacity. What do you think the Supreme Court needs to do on an urgent basis to fix its own house?

Datar: Well actually the views have been very polarized. There have been people who are completely pro collegium, totally there. I think it requires a balance. If the collegium system is to continue, it has to be more transparent, it has to have a particular standard method of appointment. In fact the main criticism if the public was, on what basis did you select MR. X or Ms. Y when they were totally unsuitable. But I personally feel that the collegium system has by and large worked. If you take an analysis of 300-400 appointments made on the collegium system, there definitely could be bad appointments. I mean in any statistical process where there are 500 appointments, you can say that 5-10-15 are faulty but a large number have been good. So I do not think it is fair to say the collegium is completely bad, that is very wrong because there are number of good appointments which have gone through the collegium. In fact in the Madras High Court, at that time Justice Katju who stood his ground, we had wonderful judges. I mean there have been very good appointments through the collegium.

Doshi: So what can they can they fix in the collegium system?

Datar: Well, one criticism which is common, which I have heard again and again is that we do not know on what basis you choose and select X person or Y person to be a potential candidate.

Doshi: So more transparent objective criteria?

Datar: Standard criteria, more objective selection process and perhaps the pool from which you select the judges, how do you take it into account?

Doshi: Right now it is the five senior most judges of the Supreme Court that constitute the collegium including the Chief Justice of India. Do you think in reforming the collegium system that the Supreme Court must consider including people from outside judiciary?

Datar: Well one suggestion that was made when the arguments were going on was that suppose we have a kind of a cell or a secretariat which for the judicial appointment process collects data of potential candidates for the appointments to the High Court and from the High Courts to the Supreme Court. Perhaps they see who the judges are, it need not be the senior most person, you take perhaps the top five judges of each high court, you assess their performance and then you select the best among them. So there was a suggestion that can there be some kind of a secretariat or some database from which you can get the statistics which will help you choose the best possible candidate that is also one suggestion.

Doshi: So you are hopeful that some of this will be incorporated?

Datar: Actually what we are planning is we are proposing to have a meeting amongst all of the lawyers for the petitioners and make some kind of concrete proposals in writing by 3rd November.

Menaka Doshi, CNBC-TV18

Today we are marking a landmark decision by the Supreme Court (SC) against the National Judicial Appointments Commission (NJAC) and in favour of the collegium system. Earlier this evening, I spoke with Harish Salve, a very well known face in Delhi and a man who had argued against the collegium system and in favour of the NJAC when he represented the state of Haryana in this series of public interest litigations (PILs). I asked Harish Salve whether he was disappointed with the outcome today.

Doshi: In all our conversations in the previous years, you have said two things that the primacy of the judiciary is not necessarily in question though there is a debate on how the constitution looks at that but that judges should not appoint judges. Are you disappointed with the outcome of this big battle in the SC today?

Harish Salve, Senior Advocate, SC

Salve: Yes, I am disappointed that SC has gone to the extent of saying primacy of the judges is part of the basic structure as it were. I have not carefully analysed the judgement of more than 1000 pages but what I have read -- there was quite a distance the court had to travel to get to grapple with the real issues and I am very happy the way it travelled that distance and the conclusion it has come to.

The government invited the court to go back to a literal interpretation of the constitution, which we left behind in the sixties where we had creative judges like Shah who created a great constitutional jurisprudence, which the world looks at with envy.

Today to argue that when your article 21 says right to life means life made by law by parliament. The parliament says if you steal a pen, you will be put to death that will be valid -- that kind of an argument. We’re seeing it again. So these kind of arguments -- what the court had to deal with initially, literal interpretations, look at the constitution assembly debates of course the framer of the constitution never thought of judicial primacy because they never expected it the executive to behave the way it did in 80s and 90s. Constitutional law has to evolve and constitutions which don't evolve and which become rigid then lead to revolutions.

History tells us that either constitutional law adapts so that society continues to blossom under a constitution or society starts disrespecting the constitution in which case you will have a revolution. Today if you say a constitution is in the literal worlds of 1950 with no right to privacy, no right to life beyond having parliament make a law etc, the people of India will rise and revote and we will throw this constitution out. So evolution of the constitution is very good.

At the time, in 1991, when the SC was confronted with a problem of executive excesses at that imperilling judicial independence, within the language of a constitution they came up with the construct in which they said judicial primacy. That was a solution for that problem but that doesn't mean there cannot be any other form, any other structure, any other institution, which can serve the same purpose.

Doshi: You are saying many things in the same answer. You are saying that you -- this is my understanding of what you are saying -- you said maybe the government argued it to one extreme in suggesting that we should go back to a literal interpretation of the constitution. So maybe you got their strategy wrong.

Salve: It is not strategy, it is a question of how you approach the constitution. So I am very happy -- when you asked me whether I was disappointed -- that we traversed all that distance and we have put the constitution in the correct perspective.

The real issue which I am at odds with the judgement is, judicial independence is not negotiable. We all have to discover the finest way of achieving that. Institutional judicial primacy is one way of achieving judicial independence, it has its pitfalls. The court records rightly with some degree of anguish, the kind of stuff they had to hear about the functioning of the collegium. There were some very unpleasant moments in court, I was not there but I was told.

The point is the SC is an institution which should never be in a situation where it has to hear stuff like this. So there are problems in judges taking on the role of appointing more judges because then the accountability for bad judges comes on to the court.

Doshi: But this is the argument you have made as well Mr. Salve that the collegium has failed us time and again, the collegium is not the perfect answer so why are you saying that the Supreme Court ought not to have heard?

Salve: You just said two things, I agree with the second, it is not the right answer, it is not the only answer.

Doshi: Well it is not the only answer but the National Judicial Appointments Commission (NJAC) sounds like a very poor alternative.

Salve: See NJAC maybe a poor alternative because of point number 1-2-3-4-5, we can address all those issues, the real issue is something else. Let us get the matter back in perspective, you have an amendment to the constitution which says there will be NJAC, now one objection which I understand the logic of is the structure of the NJAC is not a part of the constitution. Should this be in the constitution? I can understand that argument saying you are delegating from the constitution into a statute. Today you have a structure with two eminent people three judges, but if you leave it to the parliament what is there to say parliament cannot tinker with it.

Answer is, if they come up with a law which does not pass muster you can challenge it etc. So there may be an argument to say please put all this in the constitution. There are certain concerns about how the independent people will be selected, what is the independence, how it is to be done? You need to flesh it out a little more, maybe. The government needs to have a comprehensive action plan and on that basis make the amendments. Maybe that was a valid criticism, whether that is good enough to strike down the law or the Court should have told the government please go back to the drawing board and come back to us and tell us how you are going to work it.

Doshi: This court is not stopping the government from doing that.

Salve: No, they struck down the amendment to the constitution, went back to the collegium system. If there was a flaw in the system we could have ironed it out. The Supreme Court's judgment ultimately then goes to the point that wherever there is absence from judicial primacy, it violates basic structure. That is something which as a constitutional lawyer I find difficult to accept.

Doshi: I have two quick questions to ask you. How do you expect or how do you suggest the government should proceed from here on? And secondly, maybe the good outcome of all of this has gone on over the last few years, is that finally the Supreme Court is in a sense, admitting that yes, there are flaws in the collegiums system and were willing to hear views to rectify flaws and come off with and improved system. So, we may end up with a better system which may not be the collegiums, which may not be the NJAC.

Salve: Let me take your second point first. Yes, there has been significant entrenchment at times, criticism of the way the collegium has worked. And well, if it has to be there, I happy the court is willing to look at tweaking it to improve it. What the government should do, I am too small a person to advise the government, they have wiser heads and they will I am sure come together and decide what is to be done.

One of the array, purely as a lawyer and a person fond of constitution jurisprudence, one option to the government could be, this is not my suggestion, this is my view. They can go back to a drawing board and see dispassionately if there are any things which are in the judgement of the Supreme Court which commend themselves, saying maybe, we are wiser, saying this, we should tighten this and tighten that and come up with an amended constitutional amendment.

Doshi: Who won today? Did the judiciary win? Did the government lose? Did India win? Did the constitution win? It is so difficult, this is a complex issue and the responses have been so varied in terms of, oh but the people wanted this, why did the Supreme Court not pay heed to it. Oh, but why is the Supreme Court being so rigid? Or thank God the Supreme Court did not give into political requirement and protected its independence. Who won today?

Salve: Let me tell you fixing the process of appointment of judges is something which we need to do whether you go back to the improved collegium or whether you go back to a judicial appointments committee, nobody wins, nobody loses, we all gain when the system improves. But I will tell you who won today. The constitution of India won because the judges looked at everything but the fact of how many Members of Parliament (MPs) voted in its favour.

The day Indian Supreme Court judges start looking at which way the political winds blow, that will be the end of our constitution.